Employment act excludes some staff

TOSHIBA CAMCORDER

The Basic Conditions of Employment Act (BCEA) does not apply equally to all employees.

In terms of section 3 of the BCEA, members of the National Intelligence Agency, the South African Secret Service and the South African National Academy of Intelligence are excluded from the provisions of the BCEA.

Also, people who work for less than 24 hours per month are excluded from the provisions of the BCEA.

In addition, “unpaid volunteers working for an organisation serving a charitable service” are also excluded from the BCEA provisions.

It is, however, not merely these provisions which exclude employees from the provisions of the BCEA.

The Department of Labour issues determinations from time to time which, in terms of section 6(3) of the act, exclude the application of certain sections (chapters) of the act, occasionally referred to as “partial BCEA exclusions”.

The factor that is used to determine who is and who is not excluded from certain sections of the BCEA is an employee’s annual earnings.

The most recent determination governing such exclusions was promulgated in the February 1, 2008 Government Gazette.

It states that: “In terms of Section 6(3) of the Basic Conditions of Employment Act, No 75 of 1997, all employees earning in excess of R149 736 per annum are excluded from sections 9, 10, 11, 12, 15, 17(2), 18(3) of the Act with effect from March 1, 2008”.

These determinations are not, unfortunately, updated annually, but are invariably amended pretty much every few years.

The sections referred to which employees earning above this threshold annual salary are excluded from are: ordinary hours of work, overtime, compressed working week, averaging of hours of work, daily and weekly rest periods, agreement on night shift work and increased pay for work on public holidays.

Simply put, if an employee earns in excess of R172 000 a year, the employer is not compelled to comply with the specified sections of the BCEA in regard to that employee earning above the “threshold”.

The Government Gazette defines “earnings” as “the regular annual remuneration before deductions, ie income tax, pension, medical and similar payments but excluding similar payments (con tributions) made by the employer in respect of the employee: provided that subsistence and transport allowance received or achievement awards, intermittent pay ments for occasional overtime shall not be regarded as remuneration for the purpose of this notice”.

“Remuneration” itself is defined in section 1 of the BCEA as “any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person”.

Certain other employees are also excluded from the provisions of the BCEA.

For example, no employee qualifies for family responsibility leave as defined in the BCEA until they have accumulated four months of continuous service.

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